State v. Jump
| Decision Date | 07 January 1914 |
| Parties | STATE v. JUMP. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Ozark County; John T. Moore, Judge.
W. R. Jump was convicted of a violation of the local option law, and he appeals. Reversed and remanded.
Geo. W. Boone, of Gainesville, for appellant. Tesley J. Luna, Pros. Atty., of Gainesville, for the State.
While the identification of defendant as the man who sold the whisky is not as clear as it might be, yet, if that was the only question in the case, considering the somewhat unfriendly attitude of the state's witnesses and the opportunity the jury had to determine this question from hearing the witnesses, seeing and observing the defendant, and the environment, we would hold that this was a question for the jury and that this court would not interfere. "It is only in case of the absence of substantial evidence to sustain the verdict that this court will interfere." State v. Mathews, 202 Mo. 143, 148, 100 S. W. 420, 421. The rule on appeals in criminal cases is much the same as in civil cases, that, where there is any substantial evidence to sustain the verdict, this court will not interfere. State v. McGuire, 193 Mo. 215, 222, 91 S. W. 939; State v. Pipkin, 221 Mo. 453, 465, 120 S. W. 17; State v. Stuart, 116 Mo. App. 327, 330, 92 S. W. 345, and cases cited.
We are persuaded, however, that the information in this case is not sufficient to sustain a conviction. Omitting formal parts, it is as follows: "Tesley J. Luna, prosecuting attorney within and for the county of Ozark and state of Missouri, under his oath of office (based upon the information of a complaint in writing by ____), informs the court that W. R. Jump, on or about the 24th day of December, A. D. 1911, at the said county of Ozark and state of Missouri, did then and there the act of the Legislature of the state of Missouri, approved on the 5th day of April, 1887, commonly known as the local option law, had been adopted and was in force as the law of the state of Missouri, within the county of Ozark, there being no city in said county having a population of 2,500 inhabitants or more, and that on or about the 24th day of December, 1911, in said county of Ozark, one W. R. Jump did then and there unlawfully sell intoxicating liquor, to wit, one quart of whisky, for the price and sum of 65 cents, and that the said W. R. Jump did not then and there have any license of any kind authorizing him to sell the same, and that said sale was then and there made without any legal authority whatsoever to sell the same; contrary to the statute in such cases made and provided, and against the peace and dignity of the state."
There are a long line of cases in this state holding that an information charging a violation of the local option law must allege either the particular facts which show that such law was adopted and put in force on a particular date, or allege generally that such law had been adopted and was in force on the day of the alleged violation. This is an essential averment to a good indictment or information and must be so definite as to leave nothing to intendment or implication. State v. Hall, 130 Mo. App. 170, 174, 108 S. W. 1077, and cases cited; State v. Searcy, 39 Mo. App. 393; State v. Snider, 151 Mo. App. 699, 702, 132 S. W. 299; State v. Wainwright, 154 Mo. App. 653, 655, 136 S. W. 30; State v. Campbell, 137 Mo. App. 105, 108, 119 S. W. 494.
The above information is almost meaningless as to this averment without striking out the words printed in italics. It starts out by charging that the defendant "on or about the 24th day of December, 1911, at the said county of Ozark and state of Missouri, did then and there"; but, without stating what he did, breaks off into an allegation as to the local option law having been adopted in that county. It reads as if the pleader meant to charge defendant with having done something in connection with the adoption of that law. Even if we are permitted to strike out and disregard as surplusage the words in italics, then there is no charge as to when the local option law was adopted and was in force in Ozark county. It then reads that such law "had been adopted and was in force," without stating when, and that on a named date the defendant sold intoxicating liquor. It was held in State v. Hall, supra, that an indictment charging that on a certain past date the local option law had been adopted and was in force in a certain county, and that on a later date the defendant sold intoxicants in said county, is not sufficient, because it could not be determined from such averment how long before the date fixed for the selling such law had been adopted and was in force; and, for aught that is alleged, such law may have been adopted more than four years before the alleged sale and been repealed by a new election. State v. Foreman, 121 Mo. App. 502, 97 S. W. 269. So here, such law may have been adopted and put in force in Ozark county at some time and yet not have been in force at the time of the alleged sale.
It will not do to say that we can reject all the words in italics except the date and connect that with the adoption of the local option law without doing violence to the language of the pleader, for it is evident that such date is only mentioned in connection with and fixing the time when the defendant did something and must perish with and be rejected as part of that surplus allegation. The same is true if we regard as surplusage the similar allegation further down in the information as to what defendant "did then and there," except that it is there stated what defendant did.
Read this information as we will, the only date, other than that given to identify the local option act, is the date of the "did then and there" of the defendant. The pleader has given no other date except the one unmistakably connected with and fixing the time of what the defendant did. This is true of this date, December 24, 1911, both in the first part of the indictment and where it is repeated later in direct connection with the "did then and there unlawfully sell intoxicating liquors, to wit," etc. It seems to us that it would be doing greater violence to the language of the pleader to strike out as surplusage the later allegation, "and that on or about the 24th day of December, 1911, in said county of Ozark, one W. R. Jump, did then and there," for that is a part of the charge of, and directly connected with, the selling of intoxicating liquors. That breaks in two an otherwise complete sentence, severing the subject and part of the predicate with the modifying words from the balance of the sentence, and then by implication connects this balance of the sentence with the former allegation of "did then and there," leaving a complete sentence and charge as to another matter inserted between the two. But even by doing that, it seems to us that the information is made no better. It still remains that the only date given is of what defendant did and not of the adoption of the local option law.
It is argued that as only one date is given, other than the date identifying the local option act, such date was evidently intended by the pleader to be the date on which the local option act "had been adopted and was in force," and that by clear implication the date on which the defendant is charged to have sold liquor is also the date on which it was intended to charge that the local option law had been adopted and was in force. The difficulty with this is that in criminal proceedings nothing material is to be taken by implication or intendment. No principle of law has been more often quoted and laid down than this. It was perhaps first formulated in these words in Hawkins, Pleas of the Crown, Book 2, c. 25, § 60, as is shown...
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